B. C. Misra, J. ( 1 ) ONE Smt. Chanderwati made a will of her property on 27-4-67 in favour of Respondent. Latter applied for grant of probate after her death on 30-8-67. Appellant questioned the will and raised other objections. Trial Court held the will genuine and held that other objections could not be gone into in probate proceedings. Appellant appealed to High Court. Para 3 onwards, judgment is : ( 2 ) MR. R. K. Sharma, counsel for the appellent has raised two questions of law, namely. (1) in view of section 222 of the Act, probate could not be granted to a person, who was not named an executor by the will and as such the impugned order is illegal and without jurisdiction ; and (2) the respondent is an association and so neither probate nor letters of administration can be granted to it. These points had not been raised in the court below or in the grounds of appeal in this court. But by my order dated 21st April, 1976, I have allowed them to be raised and given an opportunity to Mr. Marwaha to meet them. One of the questions raised at the bar is that the order of the court below is without jurisdiction under section 222 of the Act as by the will the testator had not appointed any executor. Section 222 of the Act reads : "probate only to appointed executor : (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. " ( 3 ) IN Edward Waston Coleston v. Theresa Chitty. AIR 1934 All. 1053, and Smt. Sushilabai v. Govind Ganesh, AIR 1958 M. P. 372, it has been held that a probate cannot be granted to any person unless and until he has been named an executor in the will. As such it is contended that the grant of probate was illegal and without jurisdiction. ( 4 ) MR, Marwaha has submitted in reply that the executors is defined in clause (c) of section 2 as follows: " (C) executor means a person to whom the execution of the last will of a deceased person is, by the testator s appointment, confided. ( 4 ) MR, Marwaha has submitted in reply that the executors is defined in clause (c) of section 2 as follows: " (C) executor means a person to whom the execution of the last will of a deceased person is, by the testator s appointment, confided. "and that in view of the definition of the contesting respondent, it must be considered to be an executor entitled to the grant of probate. ( 5 ) THE will (Ex. P 1) which has arrived in court in a sealed cover has been opened in the presence of the counsel for the parties. The operative portion of the will reads as follows : "this building (Immovable Property) detailed above which I am entitled to sell or dispose of during my life time, I give and devise in trust the (sic) Sarvadeshik Arya Pratinidhi Sabha, Daya Nand Bhavan, opposite Ram Lila Ground, 5/3, Asaf Ali Road, New Delhi-1. . . . . . . . "the purpose of the Trust, named after me shall be : "to run an Arya Samaj School which inter alia should impart Shuddha Vedic teaching as preached and practiced by Maharishi Daya Nand Sarswati Maharaj and named as Chandra Wati Arya School (Chandra Wati Arya Pathshala ). " ( 6 ) THERE are no other words or phrases in the will to indicate that the execution of the will has been confided to the contesting respondent. From the above expressions, I am unable to hold that the contesting respondent has been named as an executor of the will or that its execution has been confided to it. It is true that the property had been bequeathed to the contesting respondent upon trust for the purpose of running Arya Samaj School, but that only makes the contesting respondent a legatee under the will. The respondent cannot be called an executor. ( 7 ) MR. Marwaha has REFERRED TO Arumilli Viramma v. Arumilla Seshamma, AIR 1931 Madras 343, P. Rama Naidu v. Rangayya Naidu AIR 1933 Madras 114, and Deveeramma v. M. S. Majappa, AIR 1961 Mysore 150, to show how an executor may be deemed to have been appointed expressly or by necessary implication. These authorities turn on their own facts and do not give any assistance in resolving the controversy raised before me. These authorities turn on their own facts and do not give any assistance in resolving the controversy raised before me. In Arumilli Viramma s case (AIR 1931 Madras 343) the alleged will stated that "it is devised that my nephew is to discharge the debts due by me to the world", and it was held that the said nephew was appointed an executor of the will by implication and that probate should be granted to him. In P. Rama Naidu s case (AIR 1933 Madras 114), it was held that an executor who prayed for probate prayed in form for something which could be granted to no one else, but the essence of the proceedings was that he sought to establish a will, not for himself, but as the representative of those who took benefits under it, and if he failed in his duty, any of those whom he represented might intervene to carry on the proceedings. In Deveeramma s case (AIR 1961 Mysore 150), the court held as follows ; "the Courts should always lean against regarding a person as having been appointed an executor by necessary implication. An executor by necessary implication or according to the tenor must have the right to receive for the estate what is due to it and to pay what is due from it. That is the correct test to be employed to determine whether a person is an executor even according to the tenor. " ( 8 ) THE facts of that case show that the will contained the following provisions, namely, "during my lifetime, I shall myself conduct the charitable acts and the entire management of other family affairs, which are to be done by me. After my death, my family members should conduct all the affairs under the supervision of the Government as stated above and N. son of my uncles, shall supervise so that everything takes place properly. " On a construction of this language, it was held that only members of the family of the testator were the persons who were entrusted with the administration and neither theGovernment nor N was entrusted with such duties as would make them executors under the will even by necessary implication and therefore, N. was not entitled to the grant of probate. ( 9 ) IN the instant case, there are no words contained in the will which either expressly or by necessary implication entrust the duty of execution of the will or the administration of the estate of the deceased to the respondent. The contesting respondent has been made the sole beneficiary and is, therefore, the legatee. Even in the application filed in the court below, by which the proceedings were initiated, it is stated in paragraph 3 that the contesting respondent was the sole beneficiary named under the will. The statement of fact is no doubt true, and it is clear that the respondent is neither in fact an executor nor had it ever claimed to be the executor of the will. As such I hold that the contesting respondent has not been appointed executor in the will in dispute either expressly or by necessary implication. Consequently, the order for grant of probate to the contesting respondent with the copy of the will attached is not sustainable and is set aside. ( 10 ) THE question next arises for consideration is what should be done. Under the provision of law, the contesting respondent, if it succeeds in proving the will, will be entitled to the grant of letters of administration with a copy of the will attached under section 232 of the Act. The problem is whether the letters of administration should be granted by this court in exercise of its applleate powers or the case should be remanded to the court of first instance. ( 11 ) I have beared the counsel for the parties. Mr. Marwaha has very seriously contended that the present preceedings commenced on 16th December, 1967 and they relate to the estate of the deceased, who died in August, 1967 and a long time has elapsed and the technical mistake that had been committed by the court below may be corrected by the appellate court and for this purpose he has REFERRED TO Kamalamna v. Somasekhrappa, AIR 1963 Mysore 136, L. Shiv Dayal Kapoor v. Union of India AIR 1963 Punjab 538, Govind N. Asreni v. Jairam Asrani, AIR 1963 Madras 456, and Sounderaja Peter v. Florence Chellaih, AIR 1975 Madras 194, and submits that in the same proceedings the error may be corrected by this Court. Mr. Sharma has, however, opposed this course of action. Mr. Sharma has, however, opposed this course of action. He submits that he will be entitled to raise other objections to the amendment of the application. Moreover, he submits that he will be deprived of a right of appeal if the matter is decided by this court at this stage. In the circumstances of the case, I consider that it will be in the interests of justice if the matter is remanded to the court below for appropriate action. ( 12 ) MR. Sharma has raised another point that sections 223 and 236 of the Act prohibit grant letters of administration to any association of individuals, unless it is a company which satisfies the conditions prescribed by rules to be made in this behalf. Mr. Sharma has REFERRED TO Mahadeva Krishna v. Mt. Nava Devi AIR 1948 Lahore 54. This authority was considered by the High Court of Allahabad in a Division Bench, Ganga Sahal v. Bhart Bhan, AIR 1950 Allahabad 480. In Banaras Hindu University v. Gauri Dutt Joshi, AIR 1950 Allahabad 196, also the view taken was that the aforesaid statutory provisions do not prohibit the grant of probate or letters of administration to corporate bodies. ( 13 ) I have considered the matter and am in agreement with the view of the High Court of Allahabad in Ganga Sahai s case (AIR 1950 Allahabad 480 ). This was a case of Arya Prati Nidhi Sabha and it was held that letters of administration could be granted to such a body which was registered under the Societies Registration Act. With greatest respect, I am not able to agree with the view taken by the High Court of Lahore in Mahashya Krishna s case (AIR 1948 Lahore 54 ). As a last resort it will still be open to the contesting respondent to obtain letters of administration under section 232 of the Act in the name of its President through whom the society is entitled to sue and this will meet the technical objection raised by the appellant. I, therefore, repel the contention of the appellant.